Goutam Hazra & Anr vs Sri Pinaki Hazra & Anr
2022 Latest Caselaw 6241 Cal

In the High Court at Calcutta Civil Revisional Jurisdication Appellate Side

Present:-

The Hon'ble Justice Subhasis Dasgupta.

C.O. No. 848 of 2022 Goutam Hazra & Anr.

Vs.

Sri Pinaki Hazra & Anr.

For the Petitioners             : Mr. Saptanshu Basu,
                                  Mr. Ram Anand Agarwala,
                                  Mr. Ananda Gopal Mukherjee,
                                  Ms. Sonam Roy.

For the Opposite Parties        : Mr. Debjit Mukherjee,
                                  Ms. Susmita Chatterjee.

Heard On                        : 03.08.2022, 12.08.2022.

Judgment                        : 05.09.2022.

Subhasis Dasgupta, J:-

Subject of challenge in this case is against an order dated 8th

March, 2022, passed by learned Civil Judge (Senior Division), 1st Court,

Barasat in Title Suit No. 79 of 2014, rejecting an application under

Section 151 of Code of Civil Procedure dated 28.03.2017, filed by the

petitioners proposing for giving an opportunity to petitioners to file written

statement afresh upon disregarding the previous written statement,

allegedly filed by the petitioners (defendant nos. 1 and 2).

Admittedly, this is a suit for partition and permanent injunction.

Mr. Basu, learned senior advocate appearing for the petitioners

(defendant nos. 1 and 2) upon adverting to Para-2 to 4 of petition

submitted that petitioners had been misled by the opposite party no.

1/plaintiff to put their respective signature on some blank papers, as well

as on vakalatnama, which had been subsequently utilized, as their written

statement.

Mr. Basu submitted that upon receiving summons of suit,

petitioners (defendant nos. 1 and 2) approached plaintiff (opposite party

no. 1) to get the suit property amicably partitioned, and on their proposal,

the opposite party/plaintiff assured petitioners that plaintiff would

undertake all responsibility to get the suit property amicably partitioned.

Petitioner, thus, upon reposing confidence upon opposite party no.

1/plaintiff, even did not ensure their appearance before the court below in

the pending partition suit, and they had no knowledge about filing of

written statement, if any, in the partition suit on their behalf. Shortly,

thereafter for the ill-treatment of the opposite party no. 1, during the

pendency of the suit, petitioners collected the certified copy of the written

statement, wherefrom they could learn that the written statement had

been allegedly filed on their behalf, which was not the product of their

conscious knowledge, and accordingly disputed the same.

By petition under Section 151 C.P.C., petitioners proposed for

granting an opportunity to file written statement afresh upon disregarding

their written statement, allegedly filed by them.

Upon narrating such factual backgrounds, Mr. Basu strongly

contended that the written statement allegedly filed was not the perfect

reflection of their mind to put up their respective defence, as per their own

choice, and it was a product of misrepresentation after being misled, the

petitioners put their signature on some blank papers, which had been

purposefully utilized to dislodge the petitioners from their proposed

defence to be set up in the pending partition suit.

Mr. Basu submitted that a written statement containing

contradictory stand was permissible under the law and there would be no

prejudice caused to opposite parties in the event of petitioners being

favoured with an opportunity to file a fresh written statement on their

behalf, upon disregarding their previous written statement allegedly filed.

Such issue could have been considered by the court below in aid of

Section 151 C.P.C., for the absence of any specific provision in the Code

permitting a person to file written statement afresh under a compelling

circumstances, as mentioned hereinabove Mr. Basu argued.

Reliance was placed by Mr. Basu on a decision reported in AIR

2006 Supreme Court 1260 delivered in the case of Jet Ply Wood Pvt.

Ltd. & Anr. Vs. Madhukar Nowlakha & Ors. with Biswarup Banerjee

& Ors. Vs. Madhukar Nowlakha, to submit that in an appropriate case,

where petitioners had been misled into making such submission of written

statement on account of misrepresentation of the other side, there may be

permission granted to file fresh written statement in aid of Section 151

C.P.C.

In the decision, referred above by Mr. Basu, a suit was allowed to be

withdrawn, but without any liberty to file a fresh suit on the same cause

of action. The petitioner subsequently filed a petition for recalling the said

order, by which the suit had been permitted to be withdrawn on the

ground that petitioner had been misled into making such application on

account of misrepresentation of the other side. It was rejected by the Trial

Court. High Court, however, allowed the prayer permitting restoration of

the suit, even after the same was withdrawn, which was upheld by the

Apex Court.

Mr. Basu, while explaining such decision submitted that when Code

of Civil Procedure is silent regarding procedural aspect, the inherent

power of the court can come in its aid to act as ex debito justitiae for doing

real and substantial justice between the parties.

Disputing with the submission of petitioners, Mr. Debjit Mukherjee

learned advocate appearing for the opposite parties submitted that there

had been no provision enacted in the Code of Civil Procedure permitting

defendant to file written statement afresh upon disregarding previous

written statement.

Mr. Mukherjee replied denying the alleged influence and

misrepresentation, exercised by the opposite parties on the score that the

relationship between the parties was strained from long before, which

could be perceived from Title Suit No. 105 of 2000, filed by petitioners

against opposite parties and appeal followed thereafter being F.A. No. 207

of 2002 of this Court, and in view of such hostile relationship, there had

been no occasion developed for the petitioners to repose confidence upon

the opposite party/plaintiff for getting their respective shares amicably in

partition suit.

Mr. Mukherjee further contended that the written statement

previously filed by petitioners on 16th February, 2016, was the true

reflection of mind of petitioners to set up their respective defence,

according to their own volition and choice, and the same should not be

disregarded upon accepting a fresh written statement, when there is

specific provision contained in the Code of Civil Procedure for amendment

of written statement even.

Reliance was placed by Mr. Mukherjee on a decision reported in

2016 SCC OnLine Cal 4012 delivered in the case of Hari Charan Pal

Vs. Dhananjay Ghosh & Anr., to submit that substitution of previous

written statement even would not be automatic on prayer, unless

sufficient circumstances are made out explaining reasons therefor.

Taking recourse to such decision, Mr. Mukherjee submitted that the

previous written statement having filed by petitioners on 16th February,

2016, such prayer for furnishing fresh written statement upon

disregarding the previous one would definitely cause delay to the suit. In

the absence of plausible explanation being offered for filing such belated

application, the court below had rightly rejected the prayer under Section

151 C.P.C.

Reliance was further placed on a decision reported in 1949 SCC

OnLine Mad 172, delivered in the case of Kallampudi NARAYANAPPA

Vs. Kaligotla SURYANARAYANA & Ors., that provision under Order 8

Rule 1 for filing written statement would not apply for substitution of a

fresh written statement in the place of one filed already under Order 8

Rule 1 C.P.C.

Profit was further sought to be derived by Mr. Mukherjee from a

decision reported in 2008 SCC OnLine Cal 465 delivered in the case of

Arijit Mittra vs. Goutam Mitter that the substituted defendant even

cannot be permitted to file written statement, as the substituted defendant

does not have any independent right to file a written statement, because

substituted defendant merely steps into the shoes of the original

defendant, unlike a person, who is added as party to a suit by virtue of an

order under Order 1 Rule 10(2) C.P.C.

In view of such submissions advanced by both the parties to this

case, together with materials placed including opposition filed by the

opposite parties, this Court is called upon to return a decision, if a written

statement may be directed to file afresh, upon disregarding a previous

written statement of defendants, for the reasons disclosed in the petition

under Section 151 C.P.C. or not.

The case of Mr. Basu, is relatable to a fundametal point of

misrepresentation and undue influence, allegedly exercised by the

opposite parties/plaintiffs upon petitioners (defendant nos. 1 and 2) in

procuring their signatures on blank papers, and consequentially the

written statement filed being misled, cannot be taken to be true reflection

of mind of petitioners in putting up their best defence in written

statement.

The ordinary relationship between the parties got strained long

before the institution of suit, which would be evident from institution of

Title Suit No. 105 of 2000, followed by appeal being F.A. No.207 of 2002.

The existence of previous litigation between the parties is quite natural to

develop a hostile relationship between the parties, for which there may not

be any occasion for both the parties to repose confidence upon each other.

Circumstances thus attended may not be considered without any doubt.

More so, full particulars of gathering knowledge by the petitioners

about putting undue influence and misrepresentation upon them, could

not be disclosed in the petition under Section 151 C.P.C.

Order 8 rule 1 C,P.C. enables defendant to present a written

statement of his defence within the time period mentioned therein.

There may not be any controversy between the parties with regard

to the settled proposition of law that the provisions of the Code are not

exhaustive. When the Code of Civil Procedure is silent regarding a

procedural aspect, the inherent power of court can come to its aid for

doing justice to the parties.

Since, written statement is permitted to be filed once, as per

provision laid down under Order 8 rule 1 C.P.C., for the peculiarity of

circumstances mentioned in this case, substitution of earlier statement by

new one is not permissible, for absence of any convincing plausible

explanation being offered therein, particularly when relationship between

the parties were uncommon in nature, and that too started long before, at

least from the year 2000, when petitioners proceeded. to file suit against

opposite parties/plaintiffs being T.S. No. 105 of 2000, which culminated

in appeal being F.A. No. 207 of 2002.

This is a case, wherein written statement was filed by the petitioners

on 16th February, 2016, meaning thereby prior to filing such written

statement, the petitioners registered their appearance before the court

below.

The last paragraph of the written statement of petitioners (defendant

nos. 1 and 2) may be mentioned here, which is as follows: "Hence prayed

for your Honour would be graciously pleased to adjudicate the share of

these defendants in respect of the suit property considering the Deed of

Settlement dated 17.09.1987 and Deed of Cancellation dated 24.03.2000

and/or to pass such other order/orders as your Honour deem fit and

necessary for ends of justice."

A bare look to such paragraph would, however, reveal that

petitioners also sought for adjudication of their shares in respect of the

suit property, upon consideration of some documents mentioned in such

paragraph. Therefore, whatever may be the narration of facts disclosed in

the written statement, said to be a product of being misled, the ultimate

prayer or object of the written statement is to have the legitimate shares of

petitioners adjudicated in the suit property.

When contradictory statement is permitted to be admissible, as per

settled proposition of law, and when there is sufficient provisions

contained in the Code for causing amendment of the written statement, to

have the desired defence being set up in the written statement, the

provision of Section 151 C.P.C. may not be attracted in such

circumstances.

For the reasons disclosed hereinabove, the revisional application

does not call for any interference.

Accordingly, the revisional application stands disposed of.

This would not, however, prevent the petitioners from proposing

amendment of the written statement in accordance with law.

Parties are directed to make communication of this order to the

learned court below.

Urgent photostat certified copy of this order, if applied for, be given

to the parties, upon compliance of all formalities, on priority basis.

(Subhasis Dasgupta, J.)